What Comes After Roe? 

With abortion rights on the ropes, feminists can’t give up on the law. 

In a move that dismayed those who have long battled to protect abortion rights in America, the Supreme Court recently decided to hear arguments in June Medical Services v. Gee. In that case, the state of Louisiana seeks to prove the constitutionality of a restrictive abortion law virtually identical to the Texas law that the Court struck down in 2016. That the Court would revisit the same issue in such a short period of time can be attributed to the fact that Justice Anthony Kennedy has since retired and has been replaced by Brett Kavanaugh. The Kavanaugh/Kennedy swap signaled the end of the slim 5–4 majority that has saved Roe v. Wade in case after case since 1973. 

Without Apology:
The Abortion Struggle Now
by Jenny Brown
Verso, 208 pp.

Now that the Court appears poised to overrule Roe—or, perhaps more likely, to keep the decision on the books while stripping it of any power—Jenny Brown’s book Without Apology seeks to offer an alternative to the losing battle over abortion rights being waged in the courts. Brown harks back to the fractured abortion rights movement of the 1960s and ’70s, in which some pro-choice advocates argued for reform of restrictive abortion laws while others argued vigorously for their repeal. This split remains in the modern mainstream reproductive rights discourse, which, as Brown describes it, embraces arguments about privacy rather than freedom. In Brown’s view, the privacy argument buttresses other “unhelpful” mainstream arguments about abortion, including that it is a matter of individual choice rather than a matter of politics. 

Brown does not want abortion to be shrouded in secrecy. Seeking to reignite a radical voice in feminist politics and activism, she wants women to talk about their abortions and not be ashamed of them. She wants women to have free access to abortion on demand and to use abortion as birth control if they want. Most of all, she wants the mainstream abortion rights movement to be bolder in its call for full reproductive freedom for women, including broad access to abortion, birth control, and pregnancy care. 

In laying out her argument, Brown takes direct aim at the legal strategy that has been at the heart of mainstream reproductive rights advocacy since the Roe decision in 1973, which she views as a pyrrhic victory. In Roe’s majority opinion, written by Justice Harry Blackmun, the Supreme Court held that the Constitution contains a right to privacy broad enough to protect the right to terminate a pregnancy. “[T]he abortion decision,” Blackmun wrote, “in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.” To Brown, it was the right result, based on the wrong legal justification. 

Brown’s argument is not new. Entire books have been written about what a better Roe opinion would have looked like. But her critique of the law is too dismissive of the ways in which advocates use litigation to advance crucial individual rights. And it is not clear how Brown imagines her movement moving beyond Roe or how that movement could or should work in conjunction with people who are working on law and policy in more traditional settings. She says that she is not prepared to argue legal strategy but only wants to make the point that there is too much focus on the law and too little on movement building. “History indicates that where the movement leads, the courts will be dragged along,” she writes. 

By this logic, should legal advocates abandon the fight to keep the Supreme Court from overturning Roe? If they did, what would the consequences be for the millions of women who could lose access to abortion services in their home states? Should the campaign to identify abortion as health care cease because it is insufficiently radical and does not focus on women’s liberation? What is the proper balance to strike between movement building and legal advocacy to reach the end that Brown seeks? 

Brown’s extended discussion of the historic 2019 referendum in Ireland that put an end to that country’s long-standing abortion ban illustrates that a multipronged approach to liberation is possible and necessary. We certainly should still discuss women’s liberation and freedom, as well as continue to emphasize that women shouldn’t feel shame about getting an abortion. But we will always need to keep lawmakers, lawyers, and legal strategists onboard. For poor women who can’t afford an abortion, changes to the law governing Medicaid will be critical to their lives and opportunities. If we want patients to be able to access clinics without being bombarded by protestors, we need laws to create and enforce buffer zones. And, as states like New York, Oregon, and California pass laws creating affirmative rights to abortion and other reproductive health care, we can see a path forward that relies on the law to expand women’s freedom, rather than merely holding the line against conservative backlash.

Ultimately, Brown implores her readers to embrace a past radical feminist movement characterized by the 1969 Redstockings Abortion Speakout, a protest in which women spoke publicly about their abortions on the theory that power comes from making abortion public. This movement, she argues, spurred the decision in Roe more than arguments made in court. But the movement that Brown romanticizes—one that relied on the “organized power of sisterhood”—was flawed in ways that she only partially explores. The black feminist writer and activist bell hooks has written that, for many black women, the appeal to sisterhood was “a plea for help and support for a movement not addressing us.” A truly radical appeal to sisterhood requires Brown to both acknowledge and seek some resolution to the persistent divide between white feminists and many feminists of color.

This is not to say that Brown completely ignores race. She writes about the disingenuous “black genocide” charge launched by anti-choice organizations to dissuade black women from having abortions. She also includes a section on racist reproductive policies, including the long history of forced sterilizations of women of color in the United States. But when she describes abortion reform in the 1940s as a response to women moving into the paid workforce in greater numbers, she fails to reflect on the fact that this is a history of white women, not all women. Black women, in particular, have rarely had the luxury—or curse—of being stay-at-home parents. 

We certainly should still discuss women’s liberation and freedom, as well as continue to emphasize that women shouldn’t feel shame about getting an abortion. But we will always need to keep lawmakers, lawyers, and legal strategists onboard.

The book’s uneven awareness of race makes Brown’s invocation of the “reproductive justice” movement confounding. She correctly describes how it emerged from black women activists in the mid-1990s as an explicitly human rights–based movement focused not just on abortion but, more broadly, on the right to have a child, the right to not have a child, and the right to parent children in safe and healthy environments. Brown uses reproductive justice to make the point that a movement singularly focused on abortion is ineffective and that abortion advocacy needs to be one part of her larger call for women’s liberation. But she does not discuss the fact that the movement is steeped in intersectionality, a concept that emphasizes the ways in which overlapping marginalized identities lead to unique forms of oppression for black women. A book that purports to discuss reproductive justice without reflecting on intersectionality misrepresents what reproductive justice is all about. Indeed, as a movement and a theory, reproductive justice focuses on the experiences of marginalized women, especially black women, something that Brown does not do in her book. 

I admire the task to which Brown set herself. In a very slim volume, she seeks to renew the spirit of a women’s liberation movement that had significant impact on the lives of many women alive today. To invoke the success of that movement, however, and persuade women who have grown into their political selves in the wake of third-wave feminism, intersectionality, and the unmaking of the gender binary, she needs to bring the past to the present and future in a way that she was unable to do in this book.

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Kimberly Mutcherson

Kimberly Mutcherson is co-dean and professor of law at Rutgers Law School. She studies issues related to reproductive justice, with a focus on assisted reproduction, abortion, and maternal-fetal decisionmaking.